Appeal No.	 EAT/853/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 1998

Before
HIS HONOUR JUDGE J HULL QC
MRS D M PALMER
MR G H WRIGHT MBE

MISS S CARLTON	APPELLANT

LA MANGA HOLIDAYS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	DR J CARLTON
(Representative)	
For the Respondents	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE RESPONDENTS	

	JUDGE J HALL QC:	This is an appeal to us from the Industrial Tribunal sitting at Reading.   Mr Robjant, the Chairman, sat alone on 20 March 1997 to hear an application by Miss Sarah Elizabeth Hope Carlton against her employers, La Manga Holidays Ltd.

	She complained that she had been unfairly dismissed, that she had received no contract of employment, that she wished to claim salary which she had not been paid, with bonuses and she asked for documents which should have been provided to her:  copies of payslips from August 1995 onwards.   That was the nature of her application.

	The history of the matter as we understand it is this;  that her employment began with the Respondents, a small firm, as a sales administrator at Wantage.   She was not a director;  she was in a highly responsible position, she was the sole representative of the company in England.   There came a time when (and this was a welcome development so far as she was concerned) on 24 July 1996 the business, or what remained of it England, was moved to Spain and Miss Carlton went out with the business either then or very shortly afterwards.   

	There were already, apparently, sums due to her, in her view.   We have heard nothing to contradict it.   Matters came to head after she had been working in Spain as a manager there.   On 6 September 1996 she resigned in circumstances where she said she was entitled to do so by reason of her employer’s breaches which went to the root of the contract.   Her employment actually ended on 21 September 1996.    Miss Carlton then made her claims by launching her IT1, her application to the Industrial Tribunal, on 29 November 1996.  

	That, if I may pause there, quite obviously was well inside the three months allowed, if that date ran from the end of her employment on 21 September.

	The application was very shortly afterwards, on 4 December, received by the central office and on 13 January 1997 the Respondents, who have not appeared before us today, put in their IT3, their answer, saying that no bonus had been earned;  saying that they had a good set-off against salary, saying that she had received benefits in kind.    That was the nature of the defence.

	But then it appeared to Mr Robjant that he had to consider a number of other matters going to jurisdiction and he did so in his decision.    The Reasons for his Decision are at page 3 of our bundle.   There is no doubt that Mr Robjant considered these matters with great care.   Having set out the causes of action (as they would be called by a lawyer) he made fact findings, (from which I hope I have cited sufficiently), and he then asked himself the question, as he was bound to do, whether any part of her complaints related to matters which he was not allowed to consider.    He referred to Section 196(1) of the Employment Rights Act in relation to employment outside of Great Britain.   He referred to the various matters which appeared to be relevant and which were excluded by various parts of Section 196.

	He said, in paragraph 8:

“I find that prior to 24 July 1996, Miss Carlton did ordinarily work in Great Britain, and, to that point, the law governing her contract of employment was the law of England and Wales.   But after 24 July 1996, Miss Carlton ordinarily worked in Spain and the law governing her contract of employment was the law of Spain.   Accordingly, Miss Carlton’s complaint of the respondent’s failure to provide written particulars can only relate to her employment in Wantage prior to 24 July 1996.”

	Then he refers to the particular subsections and paragraphs of Section 196 which refer to the various matters of which she does indeed make complaint and he says:

“...so it follows that the Tribunal has no jurisdiction in respect of the claims relating to the itemised pay statement, outstanding wages or unfair dismissal to the extent that these claims arose after 24 July 1996.”

	Against that part of his judgement there is no appeal.   But I must go on to show how the appeal is brought.   He goes on to say:

“11.  It was, however, apparent that Miss Carlton’s case was that the difficulties concerning the statement of particulars, pay slips and pay had been running for some time prior to her leaving for Spain on 24 July, and had simply come to a head after she had arrived in Spain.   So does the Tribunal have jurisdiction to consider any of these matters insofar as they arose during the continuance of the English contract of employment up to 24 July 1996?”

And then he went on to refer to the various provisions of the Employment Rights Act which say that an Industrial Tribunal shall not entertain any application under those various provisions unless it is brought within three months unless the Tribunal considers:

“that it was not reasonably practicable for the application to be made before the end of that period of three months.”

	So he had to look and see whether there was anything which caused him to think that although she was well over the three months, after 24 July, nonetheless it has not been reasonably practicable for her to present her complaint within the three months.

	He said, considering that:

“15(d)   The only reason why Miss Carlton failed to lodge her complaints about the written particulars, pay slips and bonuses within three months of 24 July 1996, was quite simply because she did not appreciate the effect of the fundamental changes in the employment contract which occurred on that date.
(e)... she was well aware that the employment contract would be subject to Spanish law from 24 July 1996, and herself expected the contract to be in Spanish, and complying with the law of Spain.
16  In short, Miss Carlton’s failure to lodge her application within three months of the fundamental change in the nature of her employment contract on 24 July 1996, was a mistake of law.   In Biggs v Somerset County Council [1996] IRLR 203 the Court of Appeal took the view that the words “reasonably practicable” are directed to a temporary impediment or hindrance faced by the individual claimant (such as illness) rather than a mistake of law.   Miss Carlton was well aware of the nature of the grounds of these complaints before 24 July 1996, but took no step to take advice or to bring the complaints before a Tribunal.   She was well aware that from 24 July 1996 she was entering into a significantly different relationship with the Respondents in that the employment contract was to based in Spain rather than England, and governed by Spanish rather than English law.   There was no practical hindrance to Miss Carlton making her claim within three months of 24 July 1996.   I can find no basis on which the Tribunal’s jurisdiction can be extended to absolve Miss Carlton from the effect of the three month limit...”

And so, accordingly, he found that she was out of time.

	When one says she did not appreciate the true position one might say, rhetorically, “who would?”   When anybody alters their residence and the place where they are carrying out their work from the UK to a foreign country very serious questions of all sorts may arise about rights:  “In what Court are the rights and wrongs to be looked into if there is a complaint?   Which law is to apply?”   And so on.   “Will it be a quite different system of law?   What are going to be the tax effects, the effects on income tax and other taxes?”   All those are the sort of questions.   Are people therefore to take advice?   We are told by Dr Carlton, to whom we are very grateful for having attended before us today, on behalf of his daughter, that in fact, very shortly after coming back to this country, she did take advice.   First of all from a friend, a person experienced in these matters who advised her informally and secondly, I think, from a solicitor or a person in authority.  They said it would date from the end of her employment, and they were wrong about that.

	If a person takes advice and it is wrong it cannot be said that it was not reasonably practicable for them to proceed correctly.   They have taken advice which happens to be wrong and they must accept responsibility for wrong advice which is given to them.   If a solicitor or a barrister makes a wrong move in litigation the party concerned has to suffer by it,  that is one of the great responsibilities of being a lawyer,  and those who suffer are entitled, within limits, to look to their solicitor or their advisor or barrister or whoever it may be, who has let them down, for compensation.   But that is quite a different matter.   It cannot be said that it is not “reasonably practicable” if the person has access to legal advice.

	But what is said by Dr Carlton, over and above that, is this, this lady did not realise until she was out in Spain and matters, as the Tribunal put it, “came to a head”, that they were not going to pay her.   She was in effect misled by them.   So, when the Tribunal Chairman says the only reason that she had failed to lodge her complaints about the written particulars and so on:

“...was quite simply because she did not appreciate the effect of the fundamental change in the employment...”

the Tribunal Chairman, Mr Robjant, should have added “and, because she was misled by her employers and forbore, perhaps at their request express or implied, to bring matters to a head, for that reason it was not reasonably practicable.”   Now it might well be that if that were the true position, that an employer misled an employee and said, “look, if you are patient with me I will pay you presently, we’ll deal with it all presently but I must ask you, please, do nothing precipitate and do not press me on this for the time being”, that any Tribunal would feel bound to say that it was not reasonably practicable for an employee, who wanted to keep her employment, to proceed in a litigious way against the employer during that period.

	The trouble with that contention, and we appreciate Dr Carlton putting it at its highest, is that there is no finding to that effect in the Tribunal’s findings.   There might have been.   There is not.   We are not able to make findings of fact and put considerations into the mind, so to speak, of the Tribunal Chairman which were not there.   We have to assume that the Chairman has said exactly what is in his mind, based on such evidence as was before him.   Certainly this is not a case where the Tribunal was asked to send its notes of evidence so that we could consider that matter and whether there was evidence on which the Tribunal Chairman could reach such findings of fact.

	In those circumstances, it seems to us that Miss Carlton is bound by what is said in the findings of fact.   She cannot say to us:  “well, time should be extended because of this agreement or implicit agreement, this forbearance at the request of the Respondents.” A fortiori she is not entitled to say to us:  “ you should find that this Industrial Tribunal Chairman was wrong in the way that he exercised his discretion and reached his conclusion.”   The Tribunal Chairman did not have this matter in mind and therefore cannot be criticised, without the notes of evidence at any rate, for not having it mind and not reaching a finding of fact to that effect.

	So it seems to us that the findings of the Chairman are, if we may say so with respect, impeccable.   Of course it is hard on Miss Carlton;  most especially so if there are facts which the Chairman did not know about and which we have only now been told about.   But for the reasons I have explained we cannot act on those.   It seems to us that the Chairman reached an impeccable conclusion, is not to be criticised for reaching that conclusion and, within the limits of his discretion in assessing the facts after hearing the evidence, he must be taken to be entirely correct.   It follows that, as we are simply a Tribunal of Law, we cannot say that there was any error of law, and we therefore have to reject the appeal.    So that, unhappily, Dr Carlton, is the result of our deliberations and it is the decision of all of us.   Those are the reasons of us all.